A state appeals court reversed a ruling against an indigent woman who was denied counsel when defending herself against accusations of abuse and neglect of her daughter during administrative proceedings.

The Appellate Division said the defendant, known only as “L.O.” and “Lola” (a fictitious name) in court documents, should have been provided counsel, both at the administrative level and also if she chooses to appeal.

“Because the potential consequences of those proceedings are of significant magnitude, we agree that, in this setting, counsel should be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court,” wrote Judge Clarkson Fisher Jr., who delivered the June 17  opinion, joined by Judges Karen Sutor and Lisa A. Firko.

“Because the opportunity was denied defendant, we reverse the final agency decision and remand for a new administrative hearing,” Fisher said.

Michael K. Furey of Day Pitney in Parsippany represented Lola in the case. Furey was appointed pro bono counsel by the Supreme Court. He was assisted by associate Michael Fialkoff of the same firm.

Furey praised the appellate court's decision.

“We were pleased that the court recognized that persons that are facing serious charges of child abuse should be afforded the right to counsel even if they cannot afford one,” Furey said by phone. “More broadly, the court recognized the importance of someone being represented by counsel in situations where important rights are affected.

“We were also pleased that the finding of substantiated child abuse against our client was voided, and hopefully, a court will permit her to begin to see her daughter again after more than five years of no contact.”

Christina A. Duclos, a deputy attorney general, argued for the New Jersey Department of Children and Families. Lee Moore, a spokesman for the office, said the office had no comment.

Amy E. Vasquez argued for the New Jersey State Bar Association, and Katherine E. Haas argued for the American Civil Liberties Union of New Jersey, each of which were invited to participate as amici.

“The Appellate Division recognized the grave potential consequences of administrative child abuse proceedings, holding that people facing these charges have a right to a lawyer,” said Haas of the ACLU-NJ in an email. “This decision is a step towards ensuring that New Jersey's legal system is a level playing field for everyone, regardless of economic circumstances.”

Vasquez said in a statement to the Law Journal: “We are disappointed in the opinion of the Appellate Division in this matter. Of course NJSBA wishes all litigants are assisted by counsel, but expanding mandatory pro bono assignments of counsel to contest administrative findings of abuse or neglect does not serve the interests of justice. This specific case should have been transferred to the Family Part of Superior Court pursuant to NJSA 9:6-8.22, as L.O. is a parent. If it had been, not only would L.O. have been offered assigned counsel, but a law guardian would have been appointed to represent the child. We will continue to monitor the case.”

The Public Defender's Office's Appellate Section of the Office of Parental Representation (OPR-A) declined the court's invitation to participate as amicus, but its managing attorney wrote to the court offering its position, stating in a court filing: “Both due and fundamental fairness suggest appointed counsel is the equitable outcome for indigent parents faced with state investigatory findings that may alter their livelihoods, reputation, or aspects of custody and visitation of their children now, or future born.”

The same managing attorney added: “Unfortunately, until the Legislature acts to fund this representation through the Office of the Public Defender, this office is unable to ease the burden to those parents in these situations.”

According to the decision, Lola had no contact with her daughter Carolyn (also a fictitious name) for five years after an acrimonious family court custody battle between Lola and the child's father, Steven. The couple separated in 2009, after which Lola obtained a domestic violence restraining order against Steven, and he was criminally convicted for assault arising from the same domestic violence event.

In 2011, the couple, which never married, were ordered to undergo reunification therapy by a family judge presiding over the custody litigation as a way to improve Steven's relationship with their child, Carolyn. The sessions were limited, according to Dr. S.W., who was appointed to oversee the therapy sessions, due to Carolyn's infrequent attendance based on assertions that she was too ill to attend.

Dr. S.W. soon formed the belief, according to court documents, that Lola was the cause of Carolyn's emotional and physical stress, hampering the reunification. The doctor suspected that Lola suffered from “Munchausen By Proxy Syndrome”—a mental illness by which a person caring for another, often a child, and in seeking attention, acts as if the cared-for child has a physical or mental illness.

Dr. S.W. conveyed his suspicion to the family judge, and the judge temporarily changed “physical and residential” custody to Steven on March 12, 2013, according to documents.

The family judge then awarded Steven “temporary sole legal custody and temporary residential custody” of the child and limited Lola to one hour of visitation per week, to be supervised at the Division of Child Protection and Permanancy office.

The family judge then referred the matter of Lola's diagnosis to the same division for investigation.

On June 19, 2013, the division gave written notice to Lola that its investigation resulted in a substantiation of abuse or neglect. Division investigator Kevin Buck testified before the administrative law judge that Lola's diagnosis was “a correct characterization” and “was one piece of evidence the Division used to support its position that Lola has a mental health issue.”

The family judge entered an order continuing the new custody arrangement indefinitely, and Lola's supervised visitation was later suspended altogether, according to court documents.

Lola appealed the substantiation finding, and a hearing before an administrative law judge (ALJ) took place in October 2014. The ALJ heard testimony from Buck, Dr. S.W. and two division experts. The division also had Lola evaluated by Dr. Michael Gentile, whose report was considered by the ALJ.

Lola was not offered counsel for this hearing and was left to conduct her own defense. and she had no experts and only provided her own testimony in response, according to the court.

In March 2015, the ALJ initially rejected the substantiation of abuse or neglect, finding that the division failed to demonstrate Carolyn “was actually a victim of Munchausen syndrome by proxy” and that the division had been “selective” in its focus on Lola's behavior, such as by “shrewdly” quoting portions of Dr. Gentile's report to justify abuse by Lola.

Dr. Gentile drew a conclusion which the ALJ adopted, that Lola “does not suffer from psychiatric illness.” The ALJ determined that Lola's behavior was instead the result of “an ongoing acrimonious marital breakup and custody battle over her daughter.” The judge also said credible evidence showed that Lola was not a “substantial risk of harm” to her daughter's health and safety and concluded that Lola's behavior, “while inappropriate, did not rise to the level of gross or wanton neglect.”

The division filed exceptions, to which Lola responded one at a time. According to court documents, the assistant commissioner accepted Lola's late submission, but rejected the ALJ's initial decision and reinstated the substantiated finding that Lola emotionally abused her daughter, and that her conduct caused the child anxiety, panic attacks and other gastrointestinal issues. This final decision put Lola's name in the Child Abuse Registry pursuant to N.J.S.A. 9:6-8.11.

Still without counsel, Lola appealed the final agency decision in August 2015 and moved in court to have counsel appointed to her, permission to proceed as an indigent, permission to supplement the record and asked for free transcripts of the evidentiary hearing.

The appellate court granted the indigency motion, but denied the other requests.

In January 2018, the Supreme Court granted Lola's motion for leave to appeal in part, directed the division to order and pay for the hearing transcripts, and appointed Furey to represent Lola in court.

The Supreme Court directed the parties “to argue the general and recurring issues of the right of indigent appellants like movant to free transcripts and the assignment of counsel to prosecute an appeal from an administrative proceeding that substantiates findings of abuse and neglect and directs the listing of their names in the child abuse registry.”

Lola argued that indigent parties should have the right to appointed counsel in administrative proceedings in light of the severe consequences that result from the abuse-and-neglect finding itself, as well as inclusion in the Child Abuse Registry, which imposes limitations on employment and other relationships.

“We agree with Lola and the ACLU and hold that: (1) the consequences of a child-abuse substantiation are of sufficient magnitude to warrant the appointment of counsel for an indigent person,” Fisher wrote in the opinion. “Two, that right attaches not only to the administrative proceedings commenced when the government agency provides the parent or guardian with written notice that an investigation has substantiated abuse or neglect, but also when a final agency decision has been appealed to this court as of right and it further includes the right to free transcripts;

“And three, until such time as the Legislature makes provision, the right to counsel shall be enforced by courts and agencies through the appointment of pro bono counsel from the Madden list,” said Fisher, remanding for a new substantiation hearing.

Added the panel: “Lola was not offered counsel and was left to her conduct her own defense. She had no experts and only provided her own testimony in response.”

Lola, the panel said, had to address the unsubstantiated Munchausen diagnosis, which posed levels of complexity and sophistication “that would put any unrepresented litigant to an overwhelming disadvantage.”

The court directed the Department of Children and Families to “forthwith include in their notices that parents or guardians who have been substantiated for abuse or neglect are entitled to the appointment of counsel if they cannot afford counsel.

“And, in this particular matter, we direct that Lola's current appointed counsel continue to represent her in the remand proceedings and any appeal as of right that may follow,” Fisher added.

Furey said the state will now have to decide whether it wants to appeal to the Supreme Court, or whether to continue to pursue charges of child abuse against Lola in another hearing before an ALJ.

Furey said if another administrative hearing is scheduled, he and Day Pitney will continue to represent Lola.